Insights into the world of divorce and family law matters

June 10, 2008

Next week, same-sex couples across the country who
want to marry will be welcomed in California. But what happens if they
later want to divorce?

That is one of the many legal issues that could
confront California newlyweds who return to home states where same-sex
marriages are prohibited. Unlike a Massachusetts ruling a few years
ago, a landmark court ruling last month allowing same-sex marriages in
California will permit almost any out-of-state couples to wed there.

But that doesn't mean their lives after the wedding
will be easy. Some gay and lesbian couples joined by marriage in
Massachusetts or Canada, or under civil unions from, say, Vermont,
contend with legal limbo in other states. Among the tricky issues,
apart from divorce, that can make the honeymoon feel decidedly over are
employee benefits, bankruptcy filings and inheritance rights.

John McCall Jr., a Dallas lawyer who represents gay
and lesbian clients in property and custody disputes, says that thanks
to the legal thicket same-sex couples can face, his clients "over and
over again tell other couples considering marriage to run in the other
direction."

Cassandra Ormiston and Margaret Chambers were married
in Massachusetts in 2004 but tried, in vain, to divorce in Rhode
Island, with the state's high court saying last year that the state
defines marriage as the union of a man and a woman. Now, Ms. Ormiston
is trying to establish residency in Massachusetts to divorce there.

That can add to an already difficult process. Joanna
Grossman, a law professor at Hofstra University School of Law in New
York who specializes in family law and sex discrimination, says she has
been contacted by more than 50 people who entered Vermont civil unions
and now want out. The problem, she tells them, is that you have to
establish residency in the state to file for divorce.

To wind down a relationship, same-sex couples have to
navigate a process that may force them to appear in three different
courts, including a civil court that treats the separation as a
business breakup. Says Mitchell Katine, an attorney who handles
same-sex separations: "It's not fair to parties to have their
relationship of 20 years treated like a breakup of two people who
operated a Kinko's."

Health care and other benefits pose similar issues. In
May, the Michigan Supreme Court ruled that public employers in the
state can't offer health insurance to same-sex domestic partners,
because of state law limiting marriage to one man and one woman. In New
York last year, a state court ruled that a man couldn't recover
workers' compensation death benefits after a partner, with whom he
entered a Vermont civil union in 2000, was struck by a car and later
died.

The law is far from settled. In February, a New York
court ruled that a community college in the state had to recognize a
Canadian same-sex marriage for purposes of awarding spousal health
benefits. Following the decision, the New York governor's office in May
ordered state agencies to recognize same-sex unions from out of state.
Then a conservative religious organization sued, arguing that the
governor overstepped his authority.

Another issue is health decisions. Texan Dennis Milam,
who married his longtime partner last year in Canada, has legal papers
authorizing him to act on his spouse's behalf. Still, Mr. Milam says he
worries about emergencies. "What if something happens at 2 a.m. and you
are upset and don't remember your papers?" he says.

Gay and lesbian advocacy groups, while hailing the
California decision, fear the creation of "bad law," or setting
unfavorable precedent, that might result if couples try to assert their
new status elsewhere. The groups are expected to issue a joint
statement Tuesday advising California newlyweds against filing suit in
their home states. "We need to lay the groundwork by changing the
climate -- convincing community leaders, moving public opinion --
before we rush into court," the statement is expected to say.

Still, a surge in litigation is likely, says Glen
Lavy, a lawyer for a group that opposes gay marriage. "We are not
encouraging people to bring these suits, but we are prepared to defend
marriage wherever these suits occur," he said.

May 15, 2008

In a monumental victory for the gay rights movement, the California
Supreme Court overturned a voter-approved ban on gay marriage Thursday
in a ruling that would allow same-sex couples in the nation's biggest
state to tie the knot.

Domestic partnerships are not a good enough substitute for marriage, the justices ruled 4-3 in striking down the ban.

Outside the courthouse, gay marriage supporters cried and cheered as the news spread.

Jeanie Rizzo, one of the plaintiffs, called Pali Cooper, her partner of 19 years, and asked, "Pali, will you marry me?"

"This is a very historic day. This is just such freedom for us,"
Rizzo said. "This is a message that says all of us are entitled to
human dignity."

In the Castro, historically a center of the gay community in San Francisco, Tim Oviatt started crying while watching the news on TV.

"I've been waiting for this all my life," he said. "This is a life-affirming moment."

The city of San Francisco, two dozen gay and lesbian couples and gay
rights groups sued in March 2004 after the court halted the monthlong
wedding march that took place when Mayor Gavin Newsom opened the doors of City Hall to same-sex marriages.

"Today the California Supreme Court took a giant leap to ensure that
everybody — not just in the state of California, but throughout the
country — will have equal treatment under the law," said City Attorney
Dennis Herrera, who argued the case for San Francisco.

The challenge for gay rights advocates, however, is not over.

A coalition of religious and social conservative groups is
attempting to put a measure on the November ballot that would enshrine
laws banning gay marriage in the state constitution.

The Secretary of State is expected to rule by the end of June
whether the sponsors gathered enough signatures to qualify the marriage
amendment, similar to ones enacted in 26 other states.

If voters pass the measure in November, it would trump the court's decision.

California
already offers same-sex couples who register as domestic partners the
same legal rights and responsibilities as married spouses, including
the right to divorce and to sue for child support.

But, "Our state now recognizes that an individual's capacity to
establish a loving and long-term committed relationship with another
person and responsibly to care for and raise children does not depend
upon the individual's sexual orientation," Chief Justice Ron George
wrote for the court's majority, which also included Justices Joyce
Kennard, Kathryn Werdegar and Carlos Moreno.

In a dissenting opinion, Justice Marvin Baxter agreed with many
arguments of the majority but said the court overstepped its authority.
Changes to marriage laws should be decided by the voters, Baxter wrote.
Justices Ming Chin and Carol Corrigan also dissented.

The conservative Alliance Defense Fund
says it plans to ask the justices for a stay of their decision until
after the fall election, said Glen Lavey, senior counsel for the group.

Gov. Arnold Schwarzenegger,
who has twice vetoed legislation that would've granted marriage rights
to same-sex couples, said in a news release that he respected the
court's decision and "will not support an amendment to the constitution
that would overturn this state Supreme Court ruling."

The last time California voters were asked to express their
views on gay marriage at the ballot box was in 2000, the year after the
Legislature enacted the first of a series of laws awarding spousal
rights to domestic partners.

Proposition 22, which strengthened the state's 1978 one-man,
one-woman marriage law with the words "Only marriage between a man and
a woman is valid or recognized in California," passed with 61 percent of the vote.

The Supreme Court struck down both statutes with its sweeping opinion Thursday.

Lawyers for the gay couples had asked the court to overturn the laws as
an unconstitutional civil rights violation that domestic partnerships
cannot repair. A trial court judge in San Francisco
agreed with gay rights advocates and voided the state's marriage laws
in April 2005. A midlevel appeals court overturned his decision in
October 2006.

February 29, 2008

Trial Court Ruling Appears to Be State's First Allowing Divorce From Same-Sex Marriage

In what appears to be the first ruling of its kind, a New York judge
will allow a lesbian couple who married in Canada to sue for divorce.

Though New York does not allow same-sex marriages, a state
trial court judge refused to dismiss a divorce and child custody suit
brought by a woman, identified only as Beth R., against her former
partner Donna M.

Donna M. had argued that her 2004 marriage should be invalid in New
York because the state doesn't allow same-sex marriage, but Supreme
Court Justice Laura Drager found that the out-of-state marriage could
still be recognized under New York law. Her ruling appears to be the
first divorce case in New York from a same-sex marriage.

"What we're seeing now is a judicial battle that's going to be
waged in [the] next few months," said Arthur Leonard, who teaches a
class on sexual orientation and the law at New York Law School. "People
sometimes forget that divorce is part of marriage. People need a
judicial process to untangle a relationship."

The state's highest court last year declined to create a
constitutional right to same-sex marriages, saying it was an issue for
the legislature to decide. That case did not address out-of-state
same-sex marriages.

New York is one of the few states that does not address
same-sex marriages. At least 41 states have laws defining marriage as
between a man and a woman, according to the National Conference of
State Legislatures; those laws allow states to reject same-sex
marriages from other states. In December, the Rhode Island Supreme
Court ruled that the state's family courts can't grant divorces to
same-sex couples.

In her ruling Monday, Drager said New York will not recognize
an out-of-state marriage only if it is prohibited by a state law or if
it is "abhorrent to New York public policy." She said only polygamy and
incest have been found to be abhorrent.

Beth R. and Donna M., described as in their 40s and working in
the media industry, were married in Toronto in 2004. They have two
daughters, both born to Donna M.

February 12, 2008

The pros and cons of same-sex marriage will get an airing here March 4 in oral arguments before the California Supreme Court, the court announced Wednesday.
In dispute is the constitutionality of the state's marriage statutes,
which currently limit marriage to couples of the opposite sex.
The contentious issue, launched in February 2004 when San Francisco
Mayor Gavin Newsom began furnishing marriage licenses to gay and
lesbian couples, reached the high court in 2006. In re Marriage Cases, S147999.
Newsom's act ignited an international firestorm of outrage and praise
that elevated the gay rights movement to the top of the American agenda.

Divisive Topic
It remains a divisive topic. Newsom said Tuesday that as the fallout
from the marriage license tumult was peaking four years ago, current Democratic presidential candidate Barack Obama refused to be photographed with him at a fundraiser in San Francisco. Obama's campaign manager, an openly gay man, denied the claim.
Cultural conservatives' counsel and lawyers for the state will face off
with the San Francisco city attorney and lawyers for same-sex couples
who sued to validate the licenses they received.
High court briefing concluded in August 2007, after the court asked the
contending attorneys for more information on the distinction between
marriage and domestic partnership. The justices announced that they
will devote an unusual three hours to hearing the lawyers present their
case.

Three Issues
Three issues are key for the court: whether the state's exclusion of
same-sex marriage violates the equal protection rights of lesbians and
gay men; whether that exclusion violates the right to personal autonomy
protected by the California
constitution's privacy clause; and whether the exclusion violates the
fundamental right to marry protected by the state constitution's
liberty clause.
The most important differences between domestic partnerships and
marriage are cultural, according to attorney Kate Kendall of the
National Center for Lesbian Rights.
"Mothers and fathers do not ever say they want to dance at their
daughter's domestic-partnership registration ceremony," Kendall said
last year. "Marriage is imbued with a very inspiring, intense and
significant cultural acceptance that for many couples, long after the
day happens, the fact of that ceremony is burned into their memory."
Mathew D. Staver, the lead attorney for Liberty Counsel, a Florida
traditional-family lobby, countered, "Those who are seeking same-sex
marriage are not doing so for the benefits but for the state's seal of
approval that comes with marriage. The state does not have to put a
stamp of approval on any relationship."
The Supreme Court
granted same-sex marriage proponents' petition for review after a
divided panel of the 1st District Court of Appeal voted 2-1 that only
the Legislature can define marriage.
The appellate court reversed San Francisco Superior Court Judge Richard Kramer, who upheld Newsom's right to issue the licenses.

December 11, 2007

Ruling cites 1961 law, deals setback to pair married in Mass.

In a split decision, Rhode Island's top court said yesterday that it
will not allow a lesbian couple who married in Massachusetts to get a
divorce in the Ocean State.

The
3-to-2 ruling was viewed by advocates of gay marriage as a setback and
by those who oppose the recognition of same-sex unions as an act of
wisdom.

The court concluded that a key 1961 Rhode Island law
defines marriage as an legal union between a man and a woman, not
same-sex couples. Unless and until the Legislature changes the wording,
same-sex couples married in Massachusetts cannot get divorced in Rhode
Island family courts, it said.

Cassandra Ormiston, who married
Margaret Chambers in Fall River in 2004 after Massachusetts became the
first state in the country to legalize same-sex marriages, denounced
the ruling, saying it discriminates against same-sex couples.

"There
have been people throughout history who have been discriminated
against," said Ormiston, 60. "And they have fought the good fight and
prevailed. It will be the case with my minority as well."

"It won't stand," she said.

Louis
Pulner, the lawyer for Chambers, said his 70-year-old client has stayed
out of public view during the high-profile litigation triggered by her
failed marriage.

"They are in legal limbo," Pulner said of the
two women. "We simply asked [the court] to allow people to get divorced
if they had a valid marriage from another jurisdiction."

According to Ormiston, the couple lived together for a decade before they got married. The marriage collapsed two years later.

In a statement, Governor Donald L. Carcieri of Rhode Island and at least one group that opposes gay marriage praised the ruling.

"I
believe this is the appropriate result based on Rhode Island law,"
Carcieri said. "It has always been clear to me that Rhode Island law
was designed to permit marriage, and therefore divorce, only between a
man and a woman."

The lawyer for the Alliance Defense Fund, a
Christian-based group, said the ruling affirms that marriage is between
a man and woman and anything else is "counterfeit."

"Not only is
today's ruling a victory for marriage, it's also a tremendous step
forward against judicial activism," Austin R. Nimocks, a lawyer for the
Arizona group, said in a statement.

But Rhode Island's attorney
general, Patrick Lynch, and the Boston group Gay & Lesbian
Advocates & Defenders criticized the ruling. "It is unfair to the
couple in question and other couples similarly situated," because they
cannot legally end their marriages, Lynch said in the statement. He
said the ruling does not affect the status of same-sex marriages of
Rhode Island couples not seeking divorce.

Karen Loewy, a staff
lawyer with GLAD, which filed an amicus brief siding with the couple,
said she was "incredibly distressed" for them. Short of persuading the
Rhode Island General Assembly to legalize gay marriage, she said, the
only certain way the couple can get a divorce is for one of the spouses
to move to Massachusetts and establish legal residency.

"It's the one guaranteed place they could get a divorce," she said.

The
court's majority said the Legislature, not the courts, should change
state law. But dissenters said Rhode Island already handles divorces
for couples married elsewhere and should do the same for the couple.

In
a telephone interview, Ormiston rejected the idea of moving to
Massachusetts for one year so she could be divorced in the Bay State.

"I
simply will not support my own discrimination," she said. "The courts
have denied me my civil rights. But we will prevail because this is the
American justice system."

October 26, 2007

Governor Arnold Schwarzenegger vetoed a gay marriage bill Friday,
saying voters and the state Supreme Court, not lawmakers, should decide
the issue. According to the New York Times, "The Republican governor
turned down a measure by Assemblyman Mark Leno that would have defined
marriage as a union between two people, not just a man and a woman.
Schwarzenegger vetoed a similar bill from Leno, a San Francisco
Democrat, in 2005 and has said he would veto all such bills. The
California Supreme Court is likely to rule next year on whether the
state's voter-approved ban on gay marriage violates the constitution.
Schwarzenegger said in his veto message that Californians ''should not
be discriminated against based upon their sexual orientation.'' He said
he supports state laws that give domestic partners many of the rights
and responsibilities of marriage."